May 6, 2010

A little-discussed but potentially important provision in the new health care reform bill, the Patient Protection and Affordable Care Act, provides immediate protections to mothers who return to work while breastfeeding.

Section 4207 states employers must provide breastfeeding employees with “reasonable break time” and a private place other than a bathroom to express breast milk during the work day. Employers are required to extend this accommodation until an employee’s child turns the age of one. This new federal law is an amendment to the federal minimum wage and overtime laws, and therefore applies to non-exempt (i.e., hourly) employees.

The law does not apply to exempt (salaried) employees. Exempt employees already may receive similar accommodations through company policy.

Employers are not required to pay their employee for the time spent expressing milk. If an employer, however, provides its non-exempt employees with a paid break, an employee shall be permitted to use this time to express milk. This new legislation applies to all employers.

Employers with fewer than 50 employees, however, are not required to comply if they can establish that compliance with the law would cause “an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

Stay tuned—the U.S. Department of Labor will issue its definitions of what constitutes “reasonable break time” and “significant difficulty or expense,” and will establish rules for enforcement in the coming months. In the interim, this law is fully in effect, and employers need to take the necessary steps to comply and accommodate breastfeeding moms.

Note: These new requirements do not pre-empt state law that provides greater protections to employees. Neither Pennsylvania nor New Jersey provide specific protection to female employees who are breastfeeding.

Hill Wallack LLP's Employment & Labor Team

We represent employers and employees in New Jersey and Pennsylvania, in state and federal matters. Our experience extends to claims of disability, discrimination and sexual harassment, as well as disputes involving termination, whistleblower activities, and collective bargaining agreements.

Our team works with businesses, public employers and nonprofit institutions to prevent work place disputes, and we defend employers from employment claims and labor grievances. Our lawyers also have won million-dollar awards on behalf of aggrieved employees.

For more information, contact one of the attorneys who work in this area: Joanne Rathgeber, Esq., Suzanne M. Marasco, Esq., Rocky L. Peterson, Esq.,  James G' O'Donohue, Esq., Maeve E. Cannon, Esq., Tiffanie C. Benfer, Esq. , Irene N. Komandis, Esq. , Dana M. Lane, Esq. or Kenneth A. Skroumbelos, Esq.

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